The first phase focused on the preparation of a comprehensive assessment of Delaware's vulnerabilities to sea level rise. The Vulnerability Assessment modeled the effects of three potential sea level increases by the end of the century - 0.5 meters (1.6 feet), 1.0 m (3.3 feet) and 1.5 m (4.9 feet) from mean higher high water - and identified state resources that were vulnerable to sea level rise. The state resources considered were broadly divided into three categories: natural resources; society and economy; and public safety and infrastructure. Within these broad categories, the vulnerability of 79 specific resources to sea level rise was examined, of which 16 were determined to be of high concern statewide: dunes and beaches; coastal impoundments; dams, dikes and levees; evacuation routes; freshwater tidal wetlands; future development areas; habitats of conservation concern; heavy industrial areas; the Port of Wilmington; protected lands; roads and bridges; railways; tidal wetlands; tourism and coastal recreation; U.S. Fish and Wildlife Service Refuges; and wells. The models did not include any effects from storm surge or increased storm intensity, and thus the effects are arguably conservative for each of the three modeled sea level increases. Even so, the Vulnerability Assessment found that all three of Delaware's counties would be directly affected by sea level rise, and 8-11% of the entire state's land area would be permanently flooded (at the public engagement session a tax assessed value of $1.5 billion was estimated for the land which will potentially be flooded). (Full Vulnerability Assessment).

Delaware's vulnerability to sea level rise is a function not only of its coastal location and economy, but also because sea level rise is occurring faster in Delaware than elsewhere. Currently the global rate of sea level rise used by the DSLRAC (from the International Panel on Climate Change (IPCC) estimates) is 0.07 inches per year, or 7 inches per century (not considering any increase in that rate in the future). However, in Delaware the sea is currently rising at a rate of 0.13 inches per year (13 inches per century), or almost double the global average. This is occurring, in part, because the part of the earth's crust under Delaware is sinking. (Simplistically, during the last ice age some regions were depressed by the weight of the glaciers, while Delaware was not depressed by such heavy glacial coverage and as a result was raised up relative to other regions. This process is now reversing as other regions rebound upward, while Delaware settles downward.) Thus, in Delaware not only are the seas rising, but the land is literally - although slowly - sinking. (See Vulnerability Assessment at 7-8).

With the key vulnerabilities identified, the second phase of the DSLRAC's mission is focused on strategies for adapting to the effects of sea level rise. The DSLRAC has identified four broad strategies: to accommodate sea level rise; to avoid sea level rise; to protect resources form sea level rise; or to retreat from sea level rise. Within these broad strategies - which the DSLRAC does not view as mutually exclusive - are 61 specific options. These range from the very broad - "Increase opportunities for technology transfer and regional coordination for transportation issues affected by sea level rise" (Option 2); "Create new partnerships to increase resources for research and development of adaptation options" (Option 6); "Create a coordinated effort to provide technical assistance to local governments" (Option 56) - to the relatively specific - "Provide sea level rise information to the Delaware Agricultural Land Preservation Program" (Option 7); "Encourage the establishment of a sea level rise group within the American Association of State Highway Transportation Officials (Option 9); "Add additional tidal observation stations in Delaware" (Option 54).

Some of the original proposed options have already proven controversial. For example, Option 33 - "Develop a comprehensive outreach strategy to educate public about sea level rise" - was revised to eliminate a reference to educating public school students about climate change and sea level rise. This revision was reportedly made after objections from the Positive Growth Alliance (which is reported as having described such education as "brainwashing") and the Homebuilder's Association of Delaware (which is reported as questioning the "targeting" of children). Another option would require property owners selling property inside zones predicted to be inundated under a specific sea level rise scenario to disclose that vulnerability to potential buyers (also discussed here). This was met with concern that it might negatively affect sales of or the availability of mortgages for such properties, particularly as some stakeholders questioned the three modeled sea level rise scenarios (0.5 m, 1.0 m, 1.5 m) as "speculation" (click here). (It is worth noting that the scenarios modeled by the DSLRAC are generally in line with the recently issued National Climate Assessment (see National Climate Assessment.)

As Delaware considers whether to accommodate, avoid, protect or retreat from the consequences of sea level rise, the Options put forward by the DSLRAC serve as an excellent point of discussion. Option 24 - "Develop a statewide retreat plan" - will undoubtedly contribute to that discussion, if not controversy. Given recent retreat oriented developments in other jurisdictions, such as the recent proposal of Governor Andrew Cuomo of New York to use federal disaster funding in the wake of "Superstorm Sandy" to buy out certain willing homeowners (click here) or the determination in the Netherlands - experts in keeping the sea out - to begin letting the sea back in (click here), an honest and complete discussion of how to engage in retreat, before any retreat is necessary, may be entirely prudent. Whether such a discussion is politically palatable is another question entirely.

McCARTER & ENGLISH CLIMATE CHANGE AND RENEWABLE ENERGY PRACTICE GROUP

The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.